Wednesday, February 4, 2009

Fruit Of The Poisonous Tree

Fruit of the poisonous tree

In much of the commentary thus far on the sudden death of Kugan Ananthan while in police custody, the focus has been on the need for greater control and supervision of the police to ensure the accountability and transparency so crucial to the curbing of abuses of power. I too have written elsewhere that the Government’s refusal to establish the proposed Independent Police Complaints and Misconduct Commission (IPCMC) is impeding its ability to deal with the attitudes and practices that have resulted in a discomforting prevalence of sudden deaths in custody.

That this is an important aspect of any meaningful and coherent effort to curb abuses of power by the police cannot be emphasised enough. The issue is really a systemic one; it is the system that is failing Malaysians and allowing for the kind of horrific events that we have been made to bear witness to far too often this last decade.

Having said that, other more immediate solutions or deterrents are no less important. A transparent investigation into the death and due prosecution of all those involved to the fullest extent of the law would serve the interest of Kugan’s family and the wider public by ensuring that justice is not only done but is also seen to be done. This would go far in helping staunch the hemorrhage of public confidence in the institution. Immediate disciplinary action would reinforce the gains.

In the same vein, there is much value in seeking to understand what it is that drives those abuses that lead to injuries or even deaths in custody.

It is readily apparent that there is no legal basis for the use of force by police officers during interrogation. If a police officer uses force he is in fact assaulting and battering an individual. In doing so, he is committing a range of crimes as well as acting wrongfully in a way that would justify a claim for damages. The question of necessary and proportional force does not arise in this sort of situation unlike in situations where police officers are confronted with the risk of injury to themselves unless appropriate defensive action is taken such as may be necessary during efforts to quell riots for instance.

Notwithstanding the foregoing being a cardinal principle of policing beatings happen; sometimes to within an inch of the suspect’s life, sometimes at the cost of that life. The question is, sadism aside, why would the police officers concerned expose themselves to potential prosecutions and damages claims.

A belief in their immunity goes some way to explaining the mindset. If police officers get away with such conduct over a period of time without reproach or reprisal, they will over time form the view that their behaviour is not only acceptable it is expected. This does not however explain what it is that prompts such conduct in the first place.

I believe the answer lies in the desire of the police officer to secure a conviction. We cannot discount the fact that in constantly being confronted by criminal acts and their consequences and having to deal with a justice system that may seem to more concerned with rules and procedures rather than justice, the police officer will over time develop a single-minded approach to getting his man. He does not care about how he gets the evidence as much as he does about getting the evidence and the conviction it will lead to. In the mind of the police officer, in doing so he is putting away a bad person, making the world a safer place for it and paving the way for promotion.

While noble in intention the approach leaves much to be desired, particularly when the end result is a custodial death. The fault may however lie in part on a system of evidence that defines itself by relevancy. All evidence is admissible to trial as long as it is relevant. As long as it is not a confession that is in issue (the law requires that to be voluntary) it does not matter that the evidence was the by-product of brutalizing that may in itself be the subject of criminal prosecution.

A solution may as such lie in a rethinking of those principles pertaining to the admissibility of evidence. The exclusionary rule implemented in the courts of the United States is a model worth considering. That rule renders evidence inadmissible if the means by which it was obtained is illegal, such evidence being the “fruit of the poisonous tree”. It goes a long way to remove the incentive to commit the kind of conduct under discussion.

Though in many ways, the refashioning of admissibility principles is really a matter for Parliament, the Malaysian courts have a limited discretion that can be wielded in such a way so as to compel respect for those constitutional guarantees that such conduct violates. This most recent tragedy is reason enough for the courts to start considering the possibilities.